dotCommonweal

News on the HHS mandate?

Following a closed-door discussion of the contraception mandate, the U.S. Conference of Catholic Bishops issued an unsigned (but unanimousy passed) "special message" that, for the most part, sounded a familiar tune. So why does religion-journalism watchdog Terry Mattingly think the media dropped the ball by not focusing on this "crucial" statement? Does this look new to you?

Beginning in March 2012, in United for Religious Freedom, we identified three basic problems with the HHS mandate: it establishes a false architecture of religious liberty that excludes our ministries and so reduces freedom of religion to freedom of worship; it compels our ministries to participate in providing employees with abortifacient drugs and devices, sterilization, and contraception, which violates our deeply-held beliefs; and it compels our faithful people in business to act against our teachings, failing to provide them any exemption at all.

This is more or less what the USCCB has been saying since the original, onerous form of the mandate dropped. The bishops restate their plan to pursue relief legislatively (not going anywhere) and judicially (maybe going somewhere). We've heard this before.

This new statement has nothing to say about the Obama administration's revision of the mandate, which allows dioceses, churches, parish schools, etc. to opt out completely. That is, such institutions are not required to provide contraception coverage to their employees--and their employees are not eligible to receive free contraception coverage from a third party. "Accommodated" institutions (such as Catholic hospitals and universities) you'll recall, do not have to contract for contraception coverage, but their employees can receive it from a third party at no cost to them.

No news there.

Nor does the statement take up the difficult question of how emergency contraception can act as an abortifacient. The bishops just keep asserting that the mandate forces their ministries "to participate in providing" their employees with "abortifacient drugs." (Never mind that every time they make a payment to a major insurance provider, they're "participating in" providing actual abortion coverage to any number of women.) That makes it sound like the mandate includes coverage for RU-486. It doesn't. It covers FDA-approved forms of emergency contraception, Plan B and Ella. The former doesn't seem to have any abortifacient properties. Indeed, in 2007 the current head of the USCCB Ad Hoc Committee on Religious Liberty allowed Catholic hospitals in his state to dispense Plan B to rape victims). And the USCCB's own Ethical and Religious Directives for Catholic Health-care Services allows that rape victims "may be treated with medications that would prevent ovulation, sperm capacitation, or fertilization." What about Ella? Recent studies do not conclusively show that it works as an abortifacient. But the bishops keep saying the mandate includes coverage for abortion drugs.

Again, not news. The bishops have been mum on this question from day one.

Yet Mattingly is miffed that outlets like the Baltimore Sun and the New York Times haven't paid more attention to this statement. "For those who want to know what the bishops had to say," he writes, "I would suggest doing what serious news readers have been doing for sometime now when it comes to the nuts and bolts of Catholic life." He continues in the comment thread: "It is news that they decided to fight on--which means the side of the argument willing to accept the compromise lost. That's VERY important in the worlds of Catholic higher education and hospitals."

Yes, let us muster every ounce of seriousness we can and reflect for a moment on the "nuts and bolts of Catholic life." Such reflection might produce the insight that Catholic bishops do not control the vast majority of Catholic colleges and hospitals. Most of those institutions are controlled by lay boards and sponsored by religious orders. And many of them have been providing contraception coverage to employees for quite some time. Perhaps the "serious news readers" might do some homework and educate the less serious readers among us about just whom the USCCB is fighting for.

Of course, there is some news in the USCCB's statement. But Mattingly misses it.

As the government’s implementation of the mandate against us approaches, we bishops stand united in our resolve to resist this heavy burden and protect our religious freedom. Even as each bishop struggles to address the mandate, together we are striving to develop alternate avenues of response to this difficult situation.

That's episcopal-speak for, "Each bishop can do as he pleases." In other words: not all bishops want to follow the Ad Hoc Committee on Religious Liberty all the way to the Supreme Court. It doesn't take much seriousness to know that some bishops have even expressed cautious optimism about the latest form of the mandate--just the will to Google.

Comments

Since the last time Commonweal visited this subject, the Obama administration has proved its serial incompetence in the matter of health care insurance reform. And let me admit, up front, I never had much hope for Obamacare, but it was obviously going to be better than what we had. Issuing everyone worry beads would be better than what we had.

The Obama administration, obviously, was not ready for prime time. Let everyone who thinks salvation will come from a one and three-fourths term governor of New Jersey, or a two-thirds term senator from Texas or anyone currently occupying the 24 hour news cycle's attention, ponder that.

But now everyone from E. J. Dionne to David Brooks, who had been saying that the start of Obamacare was inevitatble for weal or woe, is starting to use the word "if." The bishops ought to be reassessing instead of reasserting. The alternative to Obamacare is no longer something that might be worked out between the House and Senate. It is a return to the system that left 40+ million Americans (and growing) without health insurance and no chance in the foreseeable future to change that system. John Boehner, Addison McConnell and Ted Cruz et al can live comfortably with that outcome on their consciences, but I -- who didn't think much of the overall plan in the first place -- wonder how the bishops can live with their complicity on their consciences.

I don't see any change in the bishops' thoughts about Obamacare, but yesterday there was an interesting political win for part of Obamacare. Vince McAllister, a very conservative Republican, won a seat in the U. S. House. He was against Obamacare generally but, unlike Gov. JIndal, he is for reforming Obamacare, specifically he wants to accept more Medicaid help for the poor. The loser was endorsed by the Tea Party. (McAllister was endorsed by Duck Dynasty Phil and Willie Robertson, which probably helped :-) McAllister also urged more civility in politics, a point which the bishops' should note.

The Bishops’ views on contraception, abortion, same-sex marriage, and religious liberty are imbedded in lawsuits they have filed, or promoted, or endorsed. The lawsuits are not going away, and certainly not those filed by the bishops themselves. So long as the judicial proceedings are kept alive, the periodic messages from the USCCB can only confirm their position as reflected in the court cases.

Tom - I have nearly always found your remarks helpful. Not this time. I have a neo-con aquaintance who is convinced FDR and his buds played a significant role in instigating WWII. Do you think he may have a point?

To suggest Obama is soley if not primarily responsible for the challenges we face in implementing the ACA is not merely glib it is stunningly unhelpful. Why? It is a remark located more than a bit away from reality.

As for the continued absolutism from the bishop's club I cannot for the life of me understand why anyone who truly believes Christ's life, teachings and death were a call for a new beginning would bother to heed the utter nonsense of an ancient order of elderly men renowned for "preaching" from high places while dressed in high hats, fine robes and fancy shoes. If such behavior is not a slap in Christ's face I have no idea what would be.

MightBe, FDR didn't attack Pearl Harbor an BHO wasn't born in Kenya. However, BHO did choose to attempt to reach universal health care coverage through the Republican template, devised at the Heritage Foundation and put into practice in one state as Romneycare. This is very close to the Swiss approach. What Romney coudn't do, and BHO chose not to do, is something the Swiss do -- impose limits on health care and insurance prices. (Hiss, boo, socialism among the Swiss bankers! Egad. Swoon.) That was BHO mistake #1.

He committed it to get Rs aboard but they simply called their plan socialism. That should have been a clue that he should do it right rather than settle for bipartisan stew. He had a plan the Ds didn't particularly prefer, and he needed them to defend it against his enemies who were the real authors of the plan.

Then he screwed up further by taking a plan that inevitably includes losers and winners -- as all insurance does (you buy it, you die before you get sick and need it, you lose) -- and selling it as something that would make everybody happy because if you were happy already you could keep it. That was misleading (to put it gently) because all kind of pain was coming with the good stuff.

Finally, instead of making sure it had the best computer site ever created, his team hired the lowest connected bidders and trusted them. And they performed about as well as Cheney's no-bid contractors performed in free, democratic and happy Iraq. He should have had one of his big contributing buds from Silicon valley riding herd on whoever executed the contract.

So, yes, your implication is right that Addison Mitchell McConnell and the Rs in Congress have been utterly obstructionist since Jan. 20, 2009. And their governors -- prominent among them my own -- have been even more egregious. But they are rubbing salt into self-inflicted wounds.

Pres. Obama's biggest mistake was assuming that a mid-western governer with mediocre administrative talents and with little or no understanding of gigantic computer systems was capable of ordering up and supervising the construction of such a complex system from scratch. The needed specialized technology was, as you point out, in the West. Washington didn't seem to appreciate that fact.

Grant: You say the bishops' conference has been silent regarding evidence about the abortifacient potential of some items approved by the FDA as "contraceptive." At the outset we need to understand that, in a Catholic context, an abortifacient includes a drug or device that interferes with the survival of a new human life at any time before birth, including the time between fertilization and implantation. Actually the Conference's comment letters to HHS have cited ample documentation on the abortifacient potential of the FDA-approved drug Ella (ulipristal). The European Medicines Agency, Europe's counterpart to the FDA, has said this drug works the same was as the abortion drug RU-486 and is "embryotoxic at low doses." See www.usccb.org, Office of General Counsel, "Rulemaking," comment letters of August 2011 and March 2013 (page 5 of each letter). Because of the evidence that Ella can cause an abortion both before and after implantation, its manufacturer says it is not to be used by a woman who is or may be pregnant. As for the drug known as "Plan B" (levonorgestrel), thre New York Times last June claimed it has no abortifacient effect -- though that conclusion is contradicted by some recent studies. But even the Times claimed there is a medical consensus that another "emergency contraceptive," the copper IUD, "can work to prevent pregnancy after an egg has been fertilized." That device is also covered by the HHS mandate. Ironically, the American College of Obstetricians and Gynecologists, which supports "abortion rights" and the HHS mandate, has declared that if the law recognized the embryonic human being as a "person" from fertilization onward, that could prohibit "some of the most effective and reliable forms of contraception, such as oral contraceptives, intrauterine devices (IUDs), and other forms of FDA-approved hormonal contraceptives." ACOG's implication is that ALL these drugs and devices attack the embryo after fertilization -- a far more sweepingh claim than anything the bishops' conference has said.

I wrote, "Nor does the statement take up the difficult question of how emergency contraception can act as an abortifacient." The how of it is what I'm talking about (not IUDs). The August 2011 USCCB letter footnotes a 1996 study of thirty-six macaques. Almost all studies of ella have not had human subjects. I've only found one that examined ella's mechanism of action in women, and its sample size was fifty-six. As far as I can tell, at very high doses, ella has effects on the endometrium that could prevent ovulation. But whether that's the case with the prescribed dose (30 mg) has not been conclusively demonstrated.

I'm not familiar with recent studies demonstrating the abortifacient properties of Plan B. The USCCB's own Ethical and Religious directives allow its administration to rape victims.

You didn't include the rest of the sentence from that EMA document. The whole thing reads, "As expected, ulipristal acetate is embryotoxic at low doses, when given to rats and rabbits in repeated doses at gestation days 6-17 or 6-18 respectively." Rats and rabbits, not humans--and at repeated doses. Aspirin is also embryotoxic at high repeated doses.

My point is not that ella definitely will not cause abortions, only that the rhetoric of the bishops conference on these "abortion drugs" exaggerates what's actually known about ella's mechanism of action.

Grant: Actually your article said the bishops "just keep asserting" the abortifacient concern but have always been "mum" on the evidence. That charge was not true. Now you want to discuss whether the evidence is "conclusive" in humans. That standard is difficult to meet for any drug or device, as direct human testing would be grossly immoral and there is no direct test for whether fertilization has occurred in a woman's body in a given case. Despite those limitations, the evidence is strong for Ella and the copper IUD, more disputed for "Plan B." The bishops' comment letters cite just a few of the many medical sources on this. For example, a recent (2/13/10) article in The Lancet, world's most prestigious medical journal, states: "The mechanism of action of mifepristone [RU-486] has been extensively studied and the striking similarity with ulipristal [Ella] suggests a similar mechanism of action for both." When human life is at stake, the burden of proof is on those wanting to dismiss such findings. You respond by linking to an unsupported quote from a former federal official, who repeats the government's claim that killing an embryo before implantation is not an "abortion" anyway. This means: If a drug comes forward that you and everyone else agrees works ONLY by producing embryo death at that stage, FDA could still approve it as a "contraceptive" and it would then automatically become part of the HHS mandate. Finally, it is not true to say that the bishops' Ethical Directives approve Plan B. They state the moral principle about not attacking new life at any time after fertilization, realizing that the principle's application to particular drugs or devices must always be reassessed in light of new facts. And in fact, the bishops' letters to HHS made no claim about Plan B's mode of action. In short, I think it might be time for us to move on.

That's because the bishops do just keep asserting that ella is an abortifacient, or is an "abortion drug." That is sloppy rhetoric. Is it your position that ella's mechanism of action (which is twofold: it seems to delay ovulation and curtail endometrial development) is so similar to RU-486 that it must be an abortifacient, but we can't really approve of finding out, because testing humans would be immoral? There already has been at least one study, as I mentioned. And it doesn't conclude that ella is an abortifacient.

This is what the USCCB Ethical Directives say: "If, after appropriate testing, there is no evidence that conception has occurred already, she [a rape victim] may be treated with medications that would prevent ovulation, sperm capacitation, or fertilization." Are we supposed to believe that does not apply to Plan B--a drug that the current head of the Ad Hoc Committee on Religios Liberty, Archbishop Lori, when he was a member of the Connecticut Catholic Conference, allowed Catholic hospitals to administer to rape victims, in accordance with state law?